UNRAVELING THE RED
TAPE
by: Shelly Harris / Entertainment
Attorney
QUESTION:
For several years from late high school through college, I was in a band
that was fairly popular on the Midwest college circuit; we did some
covers but most of our material was original and we also released a
couple of CDs.
Recently the band split in two for personal reasons, and the drummer and
I are in a new band. I was a primary songwriter in the old band, though
we always just split the credits on the songs four ways to try and be
fair to the guys that didn't write as much.
Now I just heard a new CD put out by the the two other members of my old
band, and I swear that they have nearly copied or at least heavily
imitated many of the songs I wrote with them in the past! I’m talking
about songs that I had really written on my own except for some
instrumental parts and things like that added by the others.
Is there anything I can do about this? And, can I stop them from doing
it again in the future?
ANSWER:
Unless you think the “imitation” rises to the level of plagiarism, it
does not appear you really have any recourse for two primary reasons.
First, for copyright purposes, imitation or evidence of a strong
influence of another artist (former band-member or not) is not a valid
legal claim unless you can provide strong evidence that a particular
distinctive melody line or lyric has been copied from a song that you
wrote. Just a strong stylistic similarity, or even a distinct
songwriting formula, sound, or subject matter that is closely associated
and distinctive to you is not enough to sustain a copyright infringement
claim.
In addition, when you copyright a song, in general what you are
copyrighting is the basic melody line and lyrics, and/or a particular
performance of that song. Instrumental parts, vocal stylization, or even
particular song structures are not included unless they are distinctly
identifiable to that song only (which would be for a jury/fact-finder to
determine).
Second, is the fact that you apparently did not receive separate
songwriting credits for the songs you alone composed while you were with
the band, making it more difficult for you to prove who actually
created/wrote the original songs in question in the first place. In
other words, the remaining members of the band could claim that they are
only imitating or borrowing from their own prior songs.
I have no doubt that it is highly possible that your ex-band-mates were
indeed profoundly influenced by your songwriting style in the years you
were together, to the extent that they might now claim it as their own.
Again, as you probably instinctively know, merely copying the
distinctive musical style or image of others is not against the
copyright laws -- though many might consider it unethical. Alas, long
and notorious is the list of artists who have made their fame and
fortune riding directly on the coattails of the true originals.
So, unless you can prove you alone wrote a particular melody line or
progression or lyrical passage that your ex-band-mates are now
incorporating into “new” songs, the only solace is the old adage that
“imitation is the most sincere form of flattery.”
Email your entertainment business questions and comments to Shelly at:
shellyharrislaw@aol.com
[Note: Names are always changed in these Q & A’s. It is always in your
best interest to consult an attorney of your choice directly regarding
any particular legal issue or problem you might have.]
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